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TMT permit shot down by state Supreme Court

Hawaii 24/7 Staff

The Thirty Meter Telescope building permit has been thrown out by the Hawaii Supreme Court.

A 58-page opinion written by Chief Justice Mark E. Recktenwald ordered the court to vacate the lower circuit court’s “May 5, 2014 Decision and Order Affirming Board of Land and Natural Resources, State of Hawaii’s Findings of Fact, Conclusions of Law and Decision and Order Granting Conservation District Use Permit for the Thirty Meter Telescope at the Mauna Kea Science Reserve Dated April 12, 2013, and final judgment thereon.”

The Supreme Court kicked it back to the circuit court “to further remand to BLNR for proceedings consistent with this opinion, so that a contested case hearing can be conducted before the Board or a new hearing officer, or for other proceedings consistent with this opinion.”

According to the latest ruling, the state Board of Land and Natural Resources “acted improperly when it issued the permit prior to holding a contested case hearing.”

The court says BLNR’s Feb. 25, 2011 approval violated Hawaii’s constitutional guarantee of due process.

Associate Justice Richard W. Pollack wrote this concurring opinion, which was joined by Associate Justice Michael D. Wilson:

V. Conclusion

This case illustrates the interweaving nature of the various provisions of our constitution. When rights as integral as the exercise of Native Hawaiian customs and traditions are implicated by a proposed action, our constitution provides several safeguards that combine to preserve those rights.

In this case, the Board was asked to grant a permit to UH for the construction of an astronomical observatory on the summit of Mauna Kea, an area sacred to Native Hawaiians. Because the project could infringe upon the constitutional right of Native Hawaiians to exercise their customs and traditions, the guarantees of Article XII, Section 7, the public trust obligations of the State under Article XI, Section 7, and the due process protections encompassed by Article I, Section 5 were all triggered to constitutionally safeguard the continued practice of Native Hawaiian customs and traditions.

Under the foregoing constitutional provisions and the precedents of this court, the Board’s obligations were to protect Native Hawaiian customs and traditions to the extent feasible, to effectuate the values of the public trust, and to provide a procedure befitting the compelling interests at stake. To perform these obligations, the Board was required to decide UH’s application pursuant to a decision-making process that incorporates the rights, values, and duties embodied by the constitutional provisions involved. Instead, the Board failed to conduct a contested case hearing before deciding the merits of UH’s application and summarily granted the requested permit without duly accounting for the constitutional rights and values implicated. The Board acted in contravention of the protections of Native Hawaiian customs and traditions provided by Article XII, Section 7; Article XI, Section 7; and Article I, Section 5. Accordingly, as a matter of constitutional law, the permit issued by the Board must be invalidated.

The University of Hawaiʻi continues to believe that Maunakea is a precious resource where science and culture can synergistically coexist, now and into the future, and remains strongly in support of the Thirty Meter Telescope. UH is currently reviewing the court’s decision to determine the best path forward.

A letter from University of Hawaii President David Lassner to Department of Land and Natural Resources Chair Suzanne Case confirms that the Thirty Meter Telescope (TMT) project site is the last new area on the mountain where a telescope project will be contemplated or sought.

President Lassner’s letter to Chair Case states that it, “shall constitute a legally binding commitment and may be regarded as a condition of the University of Hawaii’s current lease(s) and of any lease renewal or extension proposed by the University.”

The commitment fulfills the second point of Governor David Ige’s 10-point “Way Forward” plan that addresses future management and stewardship of Maunakea. UH has also fulfilled the third point of the plan, officially identifying three telescopes that will be decommissioned and permanently removed before TMT begins operations.

Ige calls for safe access to summit of Mauna Kea

HONOLULU — Gov. David Ige today released the following statement about the Thirty Meter Telescope (TMT) team’s plan to repair equipment already on Mauna Kea and re-secure the site this month:

“The maintenance and equipment repair work TMT plans to undertake will protect the environment and enhance public safety as we head into the winter season. This is not the start of construction of the telescope.

“As governor, I am committed to upholding the law and providing safe access for those who need to get to the summit of Mauna Kea, and that includes those involved with the TMT project. Our primary concern is for the safety of all.

“If this work is stopped, it is not a victory. It will harm the environment. If there is violence, as some have suggested, that is not a victory. We are one community and we must continue to search for a resolution that will keep this community together.”

MAUNA KEA EMERGENCY RULES INVALIDATED BY COURTS

A circuit court judge today invalidated emergency rules which made it illegal to be on Mauna Kea at night. David Kauila Kopper, attorney with the Native Hawaiian Legal Corporation which filed the lawsuit challenging the rules on behalf of E. Kalani Flores, said that “the Court recognized that the State did not follow the rule of law in creating these emergency rules. The State can no longer arrest innocent people who are on Mauna Kea at night for cultural or spiritual reasons.”

HAR 13-123-21.2, an administrative rule banning all people who are not at a telescope observatory or University of Hawai‘i facility from being within a “restricted area” on Mauna Kea between the hours of 10:00pm and 4:00 am. The rule also prohibits possession of a tent, sleeping bag, or camping stove at any time. The Court found that the Department of Land and Natural Resources, Board of Land and Natural Resources, and Chairperson Suzanne Case failed to follow proper rulemaking procedure in adopting the rule.

Flores, a professor and cultural practitioner with traditional Native Hawaiian practices on Mauna Kea, said “Mauna a Wākea (Mountain of Sky Father) is considered one of the most sacred places in Hawai‘i. This mountain was important to our ancestors and is still important to us today for night time cultural practices. We were forced to go to court to challenge the State’s invalid new rule to make sure that Native Hawaiian practitioners, and all members of the public, can access Mauna a Wākea during all hours of the night.”

On July 10, 2015, the Board of Land and Natural Resources voted to adopt the rule after 8 hours of public testimony, most of which was in opposition to the rule. The Court determined that the rule was not drafted properly and did not provide proper notice for the reasons it was adopted.

Kopper said “the State adopted an illegal rule to prevent opposition to the TMT at the expense of sincere cultural practices and public expression. Cultural practitioners, like Professor Flores, and the public should not have been put in the impossible position of choosing between giving up their nighttime practices on Mauna Kea or becoming a criminal.”

There are 21 reported citations or arrests.

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